Note: Sample below may appear distorted but all corresponding word document files contain proper formattingExcerpt from Essay:
voluntary and involuntary manslaughter?
Voluntary manslaughter refers to a situation where the defendant committed an unlawful homicide with criminal intent or malice aforethought, while involuntary manslaughter refers to a scenario where a defendant has committed an unlawful homicide but without the requisite criminal intent. Instead of malice, the intent required for involuntary manslaughter is either recklessness or criminal negligence. Recklessness involves a blatant disregard for the dangerousness of a situation. Criminal negligence can encompass a wide variety of scenarios, but basically involves either extreme carelessness or incompetence. In fact, criminal negligence can be very fact-specific, because the carelessness or incompetence of a defendant may depend largely upon that defendant's personal background. For example, professionals are held to a different standard than non-professionals. The Court of Criminal Appeal determined gross negligence involuntary manslaughter involved a defendant with a duty to the deceased, a breach of that duty, the breach of the duty caused the deceased's death, and the negligence amount to a disregard for the life or safety of others (R v Bateman (1925) 19 Cr App R. 8 (1925)).
However, it is important to distinguish voluntary manslaughter from other types of homicide; for it to be manslaughter, there must be mitigating circumstances. The reason that voluntary manslaughter is an option is that the UK has a mandatory life sentence for those convicted of murder, but a voluntary manslaughter conviction does not have the same mandatory provisions. There are four main areas of voluntary manslaughter under British law: provocation, diminished responsibility, suicide pact (which is expanding to encompass mercy killings, even in scenarios where the killer never had an intention of taking his or her own life after killing the victim), and infanticide.
2. What are the types of voluntary manslaughter?
The four main types of voluntary manslaughter include: loss of control (also referred to as provocation), diminished responsibility, suicide pact, and infanticide. The Homicide Act 1957 provides the diminished responsibility and suicide pact defences to a charge of manslaughter. While the law has not completely changed to encompass mercy killings, there has been a trend to suggest that mercy killings should be encompassed in the suicide provisions of the Homicide Act 1957. The Coroners and Justice Act 2009 creates the defence of loss of control, which was previously referred to as provocation in the common law. In England, the Infanticide Act 1938 permits a mother who is charged with killing an infant under the age of 12 months to be charged with infanticide, a manslaughter charge, rather than a murder charge. It also permits her to be found guilty of manslaughter rather than murder.
3. What is the effect of succeeding in one of the defences encompassed by voluntary manslaughter?
The most significant effect of succeeding in one of the defences encompassed by voluntary manslaughter is that the defendant is not subject to the mandatory life sentences that automatically accompanies a conviction for murder in the UK.
4. What is the definition of loss of self-control? Where would you find that definition?
The defence of the loss of self-control developed under the common law as provocation, and has been recognized, in some form, as a defence to murder since the 1612 case E.G. Royley's case (1612) Cro. Jac. 296; 79 ER 254. In modern times, the defence of provocation has been codified as the defence of loss of self-control. In Homicide Act 1957 § 3, one finds the modern definition of the offence: "Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining the question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man."
5. Who has the burden of proof with regard to the defence of loss of control?
The defence of loss of self-control is not a burden-shifting defence. A criminal defendant does not carry the burden of proving that he or she lost self-control. In fact, a criminal defendant does not even have to raise the defence in order for it to be applicable. The judge determines whether or not there is enough evidence for the jury to consider whether or not a defendant has a meritorious loss of self-control defence. The burden of proof is with the prosecution to defeat the idea that the defendant was sufficiently provoked in order to commit the crime.
6. What are the tests which must be passed to establish the defence of loss of self-control?
There are two prongs to the defence of loss of self-control, a subjective prong and an objection prong. The subjective prong is a question of fact, and asks whether the defendant actually lost self-control. To satisfy this prong of the defence the loss of control must be both sudden and temporary. However, that does not mean that the underlying provocation needs to be either sudden or temporary; the loss of control can come as the result of long-term behavior which could result in the loss of self-control. What this means is that there usually will not be any significant delay between the act that triggers the loss of control and the killing, because of the suddenness requirement. The objective prong is also a question for the jury, but is not really a question of fact. Instead, the jury is asked to consider whether the provocation was sufficient to allow a reasonable man to behave in the same way as the defendant. It is important to realize that, under English law, the reasonable man standard is tailored somewhat to the defendant. In other words, the reasonable man under consideration would be the reasonable man in the defendant's situation. For example, one would expect a small, short, young female to believe that certain behavior was more reasonable than a tall, heavy, older male, if only because they will perceive the world in a different manner. This difference in defendants is part of the defence. However, it is also important to realize that judging from that standard does not mean that a defendant gets a free pass; the reasonable man is never intoxicated and has a reasonable ability to exercise self-control. In other words, a defendant who is a drunken hothead is not judged from the standard of another reasonable drunk hothead.
Explain and analyze them using case law.
One of the interesting ways that the defence of loss of control is being used in modern English law deals with the battered woman who strikes back at and kills her batterer after years of abuse. R v Ahluwalia (1993) Crim LR 63 provides a great example of such a case. The defendant was charged with murdering her husband. There was a long history of domestic violence by the deceased against the defendant, including an episode where he knocked her unconscious. The defendant purchased caustic soda and petrol to use upon her husband. On the night of May 8-9, 1989, the deceased made threats to beat and burn his wife, and demanded money from her. The defendant threw the petrol and caustic soda at the deceased, in his bed, and threw a lighted stick after the petrol. The deceased died of the burns received during this attack. During an interview with the police, the defendant said that her intent was to hurt, but not kill her husband. The defendant was convicted of murder, but appealed her conviction on the basis that the trial judge had misdirected the jury on provocation and on the characteristics of the reasonable person under the provocation test. The defendant also challenged her murder conviction on the basis of her diminished responsibility, but that issue was not raised at trial. The Court of Appeal determined that the trial court properly instructed the jury as to the sudden and temporary loss of control necessary for a provocation defence. The Court also held that the trial judge properly instructed the jury as to the personal characteristics of the reasonable man; special characteristics such as those encompassing the battered woman syndrome could be considered as part of the reasonable man syndrome. However, the Court looked at the fact that the defendant had offered no medical evidence that she suffered from battered women syndrome or post-traumatic stress disorder. Despite this, the Court found that the defendant may have been able to use a diminished responsibility defence because she had an underlying depression, and it should have been considered.
7. Explain what must be established for a defence of diminished responsibility?
The defence of diminished responsibility is like a stair-step defence between insanity and full-culpability. It is only available for homicides, and can reduce a murder conviction to a manslaughter conviction. Homicide Act 1957 § 2(1)…[continue]
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